Hee v State Transit Authority of New South Wales - [2018] NSWWCCPD 6

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hee v State Transit Authority of NSW [2018] NSWWCCPD 6
APPELLANT:	Michael Hee
RESPONDENT:	State Transit Authority of NSW
INSURER:	Self-insured
FILE NUMBER:	A1-2051/17
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	27 October 2017
DATE OF APPEAL DECISION:	26 February 2018
SUBJECT MATTER OF DECISION:	Special provisions for workers with highest needs; s 38A of the Workers Compensation Act 1987; whether benefits payable under s 38A in circumstances where there is no other entitlement to weekly compensation
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Law Partners
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s determination of 27 October 2017 is confirmed.

INTRODUCTION

This appeal concerns the interpretation and application of s 38A of the Workers Compensation Act1987 (the 1987 Act). Section 38A is a special provision which entitles workers with highest needs to a minimum payment of weekly compensation of $788.32, in certain circumstances.
In particular, the appeal concerns whether a worker with highest needs is entitled to receive weekly payments of compensation under s 38A when the worker’s entitlement under s 37 of the 1987 Act was assessed at nil.
For the reasons that follow, the appeal is unsuccessful.

BACKGROUND

In January 1996, Michael Hee, the appellant worker commenced work as a bus driver with the State Transit Authority of NSW, the respondent.
On 17 October 2013, Mr Hee sustained an injury to his cervical spine when he tripped and fell on his left hand when helping a passenger get onto the bus with a broken trolley. He immediately felt pain in his neck, left wrist and back. That day, Mr Hee reported the injury to the respondent and completed an incident notification form. He did not seek treatment for his injury until 9 January 2014.
On 24 January 2014, Mr Hee underwent an urgent cervical laminectomy. He did not work from 24 January 2014 to 31 May 2014, returning to his pre-injury duties on 1 June 2014.
Mr Hee made a claim for compensation. The insurer disputed liability and the matter came before the Commission. However, on 22 August 2016, at the conciliation conference, the insurer agreed to pay Mr Hee weekly compensation based on his pre-injury average weekly earnings of $1,391.35. He was paid a closed period from 21 January 2014 to 31 May 2014, pursuant to ss 36 and 37.
On 9 March 2017, the parties entered into a Complying Agreement in respect of 34% whole person impairment of Mr Hee’s cervical spine as a result of the injury of 17 October 2013.
On 17 March 2017, Mr Hee made a claim for weekly compensation pursuant to s 38A of the 1987 Act. He claimed weekly compensation at the rate of $788.32 per week as adjusted from 17 October 2013 to date and continuing on the basis that he was a worker with highest needs. This claim was disputed by the insurer.
On 28 April 2017, Mr Hee filed an Application to Resolve a Dispute (the Application). He claimed weekly compensation pursuant to s 38A of the 1987 Act from 17 October 2013 to date and continuing. That claim was amended on 10 October 2017, to claim weekly compensation pursuant to s 38A from 1 June 2014 to date and continuing.
On or about 17 May 2017, the insurer issued a notice to Mr Hee that was titled “Written Advice of Work Capacity Decision and its Outcome”. The notice (which is extracted below at [43]) provided that the insurer had conducted an assessment of Mr Hee’s work capacity and had made a work capacity decision pursuant to s 43 of the 1987 Act. That decision was that Mr Hee had resumed his pre-injury duties on a full-time basis and as a consequence was not entitled to any further weekly compensation. This was irrespective of having been assessed as a worker with highest needs pursuant to s 32A of the 1987 Act.
On 19 May 2017, the respondent filed a reply to the Application. It claimed that the Commission had no jurisdiction to determine the dispute pursuant to s 43(3) of the 1987 Act because the insurer had made a work capacity decision in relation to Mr Hee’s claim for weekly compensation.
The matter came before Senior Arbitrator Glenn Capel for conciliation and arbitration hearings on 21 July 2017 and 10 October 2017, respectively. In a Certificate of Determination dated 27 October 2017, the Commission entered an award for the respondent in respect of the claim for weekly compensation.
The Senior Arbitrator observed that the Commission retains jurisdiction to make orders in respect of weekly payments after the second entitlement period, but that such orders must not be inconsistent with any work capacity decision by the insurer. He found that the insurer’s notice, dated on or about 17 May 2017, was not a notice with respect to a work capacity decision. He then found that, as Mr Hee’s actual earnings since 1 June 2014 exceeded 95% of his pre-injury average weekly earnings for the purpose of s 37 of the 1987 Act, Mr Hee was not entitled to any payments of weekly compensation pursuant to s 38A.
Mr Hee appealed the Senior Arbitrator’s decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant seeks an oral hearing. It submits that the matter involves the determination of a question of law which has not been considered by a Presidential member. It submits that the Commission might be assisted by oral submissions.
The respondent submits that the appeal may be determined on the papers.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

Mr Hee

In evidence are two statements by Mr Hee, dated 18 April 2017 and 21 July 2017 respectively. In his first statement, Mr Hee states that his pre-injury average weekly earnings was $1,391.35. He states that he was employed on a full-time basis and worked 40 plus hours per week plus overtime.
Mr Hee records that on 17 October 2013, whilst in the course of his duties as a bus driver, he tripped and fell onto his left hand when assisting a passenger get onto the bus. Immediately following the incident he felt pain in his “neck, left wrist and back”. He reported the injury to his employer. His general practitioner certified him fit for suitable duties. He returned to normal duties.
On 9 January 2014, Mr Hee presented to Canterbury Hospital due to a lack of coordination in his muscle movements and left sided weakness. On 24 January 2014, he underwent an emergency C4/5/6 laminectomy and lateral mass fusion under the hand of Dr Saeed Kohan. Following the surgery, Mr Hee was certified unfit for work until 21 April 2014.
As a result of the injury he claims he continues to suffer from several disabilities and restrictions in respect of his upper and lower extremities. He has pain in his neck, lower back and left wrist. He stated that he had numbness in his left arm and both legs. He is unable to run and has difficulty walking and alighting and descending stairs. He stated that he has urgency when going to the toilet and occasional faecal and urinary incontinence. He has difficulty undertaking domestic duties, including washing clothes and cannot mow the lawn.
He claimed that he had not been paid any workers compensation benefits for the periods he was off work. He also claimed that he “eventually returned to worker without restriction”. However, he states that he is required to go to the toilet immediately before and after every trip, which lasts approximately an hour to an hour and a half. He also states that he restricts his fluid intake in order to control his bladder.
In his second statement, Mr Hee claims that prior to his injury he worked a six day roster plus overtime. He “would estimate [he] would do overtime after 80% of [his] shifts”. There was no set roster for overtime and he was paid at double time rates for any overtime work.
Mr Hee claims that since his return to work at the end of May 2014 he can “no longer do any overtime”. He states that he continues “to work [his] normal six day roster but after [his] shifts [he] is so tired and stressed [he] cannot taken on anything extra.” He also states that he is having problems with his bowels and bladder. He claims that he is “losing approximately $200.00 per fortnight as a result of not taking any overtime shifts”.

Medical certificates

In evidence are several medical certificates. Dr Abeydeera certified Mr Hee with capacity for some type of work avoiding bus driving duties from 18 October 2013. Dr B Narayanan certified Mr Hee as totally unfit for work from 21 January 2014 to 21 May 2014. Dr Ruan, Mr Hee’s treating general practitioner, certified that Mr Hee had no current work capacity from 7 February 2014 to 21 March 2014.

Medical reports

Concord Hospital

In evidence is a report by Dr Kohan, dated 4 May 2015. In that report, Dr Kohan recorded that Mr Hee experienced neck pain on and off following the injury in October 2013. He also recorded that Mr Hee noticed progressive weakness in his left limbs and had difficulty walking, prompting him to attend Canterbury Hospital. Given the severity of the compression of the spinal cord Mr Hee underwent multilevel cervical laminectomy for decompression and fixation between C3 and C6.
Dr Kohan recorded Mr Hee’s symptoms post operatively. He recorded that Mr Hee’s gait improved and had continued to make steady progress until his last review on 8 September 2014. At that time Mr Hee reported normal bowel and bladder function and had returned to normal pre-injury activities driving a bus at normal hours. He also recorded that Mr Hee experienced some left leg spasm but had not significant issues with neck pain or pain radiating to the arms.
Dr Kohan recorded that, in terms of the association of his injury with his condition, the changes seen were chronic degenerative changes. However, the fall had likely exacerbated compression of the spinal cord and progressively over time his symptoms worsened with these symptoms.
In evidence is a report by Dr Ross Hawthorne, rehabilitation specialist, dated 20 June 2014. Dr Hawthorne recorded that Mr Hee had returned to full-time work as a bus driver. He also recorded that Mr Hee reported “no problems with steering, sitting for long hours and using the brake”. He further recorded that there were no issues with respect to bowel, bladder and sexual function. Running was the only limitation at that time. Dr Hawthorne recorded that Mr Hee recovered well from the surgery and discharged him from the rehabilitation facility.

Dr Mellick

In evidence is a report by Dr Ross Mellick, consultant neurologist, dated 20 September 2016. In that report, Dr Mellick referred to a report of 18 March 2016 which does not appear to be in evidence.
Dr Mellick recorded a history of the injury and Mr Hee’s current symptoms. Dr Mellick recorded that Mr Hee stated he continued to have difficulty walking and he is required to stop walking after three to four blocks. He is unable to run and has difficulty climbing down stairs because his “legs do not straighten”. He has impaired dexterity in the left hand and some decreased dexterity in the right hand. He suffers urgency of the bladder and bowel function and experiences incontinence and some sexual dysfunction.
Dr Mellick also recorded that Mr Hee continues to work full-time as a bus driver in his pre-injury work. He recorded that Mr Hee needs to go to the toilet immediately before and after each bus trip, which lasts about an hour to an hour and a half. He restricts his fluid intake and controls what he eats. The bus is automatic and he is not required to change gears. It is equipped with “power steering, making the steering easy”. He assisted his wife with some housework but did not undertake heavy housework, including taking out the garbage.
Dr Mellick concluded that there is a clear history of injury having occurred on 17 October 2013. The history is of progressive impairment of function involving the upper and lower extremities, especially on the left side. He found Mr Hee to have cervical myelopathy of the upper and lower extremities, affecting those extremities and his bladder, bowel and sexual function. Dr Mellick observed that as a consequence of the injury Mr Hee is not able to perform heavy activities at home and that some domestic assistance for those activities is required. He assessed Mr Hee with 43% whole person impairment.

Dr O’Sullivan

Dr Dudley O’Sullivan, neurologist, assessed Mr Hee at the request of the respondent’s legal representatives. In a report dated 12 January 2017, Dr O’Sullivan, recorded a history of the injury and symptoms. Dr O’Sullivan recorded that Mr Hee said there had been no change as far as symptoms were concerned since the doctor had seen him on 28 July 2016. Dr O’Sullivan’s earlier report, regarding attendance on 28 July 2016, is not in evidence.
Dr O’Sullivan recorded that Mr Hee stated he continued to have “some difficulty walking, especially with regards to his left leg which tends to drag … [and] he has to stop after walking three to four blocks”. He is unable to run and has difficulty climbing down stairs, but is able to climb up stairs. He continues to have difficulty with the left hand function and his right hand feels “a little weak”. He continues to have persistent pins and needles in both hands, and a burning feeling and muscle spasms in both legs. There is slight incontinence and bowl and sexual dysfunction.
Dr O’Sullivan recorded a history that Mr Hee continues to work full-time as a bus driver, working nine hour shifts six days per week. He plans his trips so that he is close to the toilet at either end of the trip.
Dr O’Sullivan diagnosed Mr Hee with cervical myelopathy secondary to his cervical cord pathology.
Dr O’Sullivan opined:
“As far as his ongoing incapacity is concerned, he is managing to work full-time, which is to his credit. However, he does have significant incapacity secondary to his spinal cord injury, but I consider that he is able to continue his present duties as a Bus Driver.”
Dr O’Sullivan assessed Mr Hee with 34% whole person impairment in respect of the injury.

The insurer’s letter

In evidence is a letter from the insurer to Mr Hee. The letter is undated but was sent to Mr Hee in May 2017. The letter states:
“Written Advice of Work Capacity Decision and its Outcome
Claim Number: 10015140
Employer: State Transit Authority of NSW
Type of Injury: Neck
Date of Injury: 17 October 2013
We refer to your claim for workers compensation at the rate of $788.32 (indexed) from 17 October 2013 notified in a letter from Law Partners dated 17 March 2017. Law Partners have submitted that you are entitled to weekly compensation at the rate of $788.32 (indexed) by operation of s 38A of the NSW Workers Compensation Act 1987 which provides as follows:

‘If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.’

We have now carried out a work capacity assessment in accordance with Sections 44(1) and (2) of the NSW Workers Compensation Act 1987.
Based on this assessment we have made a work capacity decision in accordance with Section 43(1) of the NSW Workers Compensation Act 1987. This decision is that you are not entitled to any further weekly compensation because you have resumed your pre-injury duties on a full-time basis, despite the fact that you have been assessed as a worker with the ‘highest needs’ as defined in s 32A of the NSW Workers Compensation Act 1987.
The decision is outlined below:
1. Decision
On 17 May 2017, we completed a work capacity assessment and made a decision on your work capacity in accordance with s 43(1) of the NSW Workers Compensation Act 1987.
We have made the following decision(s) regarding your claim:
·Section 33 of the Workers Compensation Act 1987 provides that total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.

·‘Incapacity’ within the meaning of section 33 means any deduction in earning power as a result of the injury. You have received weekly compensation in relation to all periods of incapacity to date.

·Under Subsection 43(1)(a) of the NSW Workers Compensation Act 1987, you have demonstrated a capacity to perform your pre-injury duties without restriction on a full-time basis, including overtime.

·You have no ‘incapacity’ in the relevant sense since your earnings are equal to the amounts you would have earned if you remained uninjured. There has been no determination of the amount of weekly compensation payable to you because you have no ‘incapacity’ in the relevant sense.

·Although you were assessed to be a worker with the ‘highest needs’ from the date that you entered into a Complying Agreement (9 March 2017) you have suffered no relevant ‘incapacity’ since that date so section 38A has no operation.

The effect of this work capacity decision is that you have no further entitlement to weekly payments of compensation.
Your entitlement to the payment of benefits and related expenses is unaffected.
This decision was made by Sarah Moss on 17 May 2017.
This decision was reviewed and supported by Aileen Lee on 17 May 2017.
…
·         As at 17 May 2017 you have been paid a cumulative period of weekly compensation payments totalling 19 weeks.
· Section 37 of the NSW Workers Compensation Act 1987 applies in your case …
3. Reason(s) for the decision
·         On 17 October 2013 you sustained an injury to your neck when you fell whilst assisting a passenger onto a bus in the course of your employment as a bus driver
·         You were off work for various periods as a result of the injury and you have been paid weekly compensation in relation to those periods
·         In or about June 2014 you resumed your full, pre-injury duties as a bus driver without restrictions and you have continued on that basis without further loss of time as a result of the injury
·         On or about 9 March 2017 you entered into a Comply Agreement which provided for payment to you of lump sum compensation in respect of a 34% whole person impairment resulting from the injury. From that date you qualified as a ‘worker with highest needs’ within the meaning of section 32A of the NSW Workers Compensation Act 1987.
·         You have suffered no relevant ‘incapacity’ for work since qualifying as a worker with highest needs and so you have no further entitlement to weekly compensation since that date.

…
6. To request a review of the decision
In accordance with Section 44(1) (a) of the NSW Workers Compensation Act 1987 you may request a review of our decision by completing the enclosed ‘Work Capacity – Application for Internal Review by Insurer’ form and if you wish, provide any further information and documents in support of your request.

The request for review must be sent to us as soon as practicable after receiving this notice. …”

Schedule of Earnings

In evidence is a schedule of earnings, filed by Mr Hee’s legal representative on 17 October 2017. That schedule records:

Period Earnings

Actual Earnings

Probable

2013

$1,516.63 P.W.

$1,516.63

2014

$1,305.37

$1,565.90

2015

$1,568.92

$1,603.25

2016

$1,584.98

$1,643.43

2017

$1,591.31

$1,673.47

Hourly rates
2013  $25.213
2014  $26.032
2015  $26.653
2016  $27.321
2017  $28.005

Warren Singleton

In evidence are several statements by Warren Singleton, the respondent’s staff supervisor, dated 10 July 2017, 10 August 2017 and 30 August 2017.
In his first statement, Mr Singleton states that he reviewed Mr Hee’s employment records and states that there “has definitely been no changes made to [Mr Hee’s] rostered hours since the injury alleged.” Mr Hee performs the same shifts as the other 10 staff on his roster and has been performing his pre-injury duties and hours since 22 May 2014.
In his second statement, Mr Singleton states that overtime is offered “in an as needs basis”. He stated that overtime “is likely to be offered to a driver like [Mr Hee] maybe 2 or 3 times per week.” An offer of overtime is always subject to “operational needs of the business” and may or may not be available when requested.
Since June 2014, Mr Hee has been regularly provided with overtime but, based on Mr Singleton’s discussions with Duty Officers who offer the overtime, Mr Hee “mostly declined it.” Mr Singleton states that Mr Hee “offered no reason for declining the offer, as is his right.” He states that, contrary to Mr Hee’s statement, Mr Hee would have been offered overtime after 50% to 60% of his shifts.
Mr Singleton states that Mr Hee earned $75,992 in 2013, $67,879 in 2014, $82,419 in 2016 and $82,748 in 2017. He stated that the change in pay was partly a result of a yearly 2.5% pay increase plus the amount of overtime worked. He also stated that the drop in pay in 2014 was a result of Mr Hee having had a period of leave due to the injury.
In his third statement, Mr Singleton attaches an analysis of Mr Hee’s overtime payments from 14 October 2012 to 29 July 2017. Mr Singleton states that from 14 October 2012 to 26 October 2013 Mr Hee’s overtime payments were $18,512.26. From 27 October 2013 to 25 October 2014 the overtime payments were $6,814.94. From 26 October 2014 to 24 October 2015 his overtime payments were $18,553.57. From 25 October 2015 to 22 October 2016 his overtime payments were $14,750.40. From 23 October 2016 to 29 July 2017 his overtime payments were $9,693.33. He estimated that he would likely receive $15,509.37 in overtime payments from 23 October 2016 to 19 October 2017.
Mr Singleton states that the reason for decline in overtime from October 2015 to date is because Mr Hee “has not made himself available for some overtime that he was offered.”

THE SENIOR ARBITRATOR’S REASONS

With the agreement of the parties, the Senior Arbitrator identified the following three issues in dispute:
(a)whether the insurer conducted a work capacity decision on 17 May 2017;
(b)if not, whether Mr Hee is entitled to receive weekly payments of compensation pursuant to s 38A of the 1987 Act, and
(c)if so, from what date should the weekly payments of compensation commence.
After comprehensively reviewing the evidence, the authorities and the relevant statutory provisions, the Senior Arbitrator concluded that he could not be satisfied that the insurer made a work capacity decision on 17 May 2017. That decision enlivened the Commission’s jurisdiction to determine the remaining issues.
The appellant’s counsel, Mr McManamey, submitted that the reference to incapacity in s 33 refers to economic incapacity or incapacity on the open labour market reasonably accessible to the worker irrespective of whether the worker is suffering any wage loss compared to his pre-injury earnings. In contrast the respondent’s counsel, Mr Robertson, submitted that incapacity within the meaning of s 33 means incapacity giving rise to an economic loss to some degree. If the loss was calculated to be zero the worker could not be suffering an economic loss.
The Senior Arbitrator considered that pursuant to s 43 of the 1987 Act, as it stood prior to the Workers Compensation Legislation Amendment Act2012 (the 2012 amending Act), the authorities established that one had to consider “the realities of the labour market in which the employer was working or might reasonably be expected to work.”[1] The Senior Arbitrator analysed those authorities in some detail.[2] He accepted that injured workers who had shown an ability to earn with post-injury employers, income in excess of their pre-injury income, would still be entitled to compensation as a result of the residual incapacity on the open labour market once they ceased employment in those higher paid jobs.[3]
[1] Hee v State Transit Authority of NSW [2017] NSWWCC 252 (Reasons), at [151].
[2] Reasons, at [152]–[154].
[3] Reasons, at [155].
The Senior Arbitrator noted the distinction in the current legislation with respect to the definition of “suitable employment.” He noted that, unlike the legislation as it stood before the 2012 amending Act, considerations such as the nature of the worker’s pre-injury employment, where the worker lives and the availability of jobs in a labour market, are no longer relevant considerations.
The Senior Arbitrator concluded that there was a distinction between the notion of “total incapacity” and “no current capacity” and noted that an assessment of “current work capacity” involves a consideration of suitable employment as defined in s 32A of the 1987 Act.[4]
[4] Reasons, at [158].
The Senior Arbitrator held that whilst s 33 of the 1987 Act provides that an employer is liable to pay weekly compensation to an injured worker during any period of incapacity, whether it be total or partial, the matter of calculating a worker’s entitlement to weekly compensation is set out in the “clear and unambiguous terms” of ss 34–38 of the 1987 Act.[5]
[5] Reasons, at [162].
The Senior Arbitrator held “[t]here is a specific formula to be applied that takes into account a worker’s PIAWE [pre-injury average weekly earnings] and the worker’s actual earnings or ability to earn in suitable employment.”[6] As Mr Hee had only been paid 18.8 weeks of compensation, his entitlement, if any, came within the second entitlement period which is calculated in accordance with s 37(2)(a) of the 1987 Act. The Senior Arbitrator set out a calculation of Mr Hee’s entitlement to compensation during the second entitlement period.[7]
[6] Reasons, at [163].
[7] Reasons, at [164]–[181].
The Senior Arbitrator did not accept that Mr Hee suffered a loss of income by reason of his inability to perform the same degree of overtime after he returned to work compared to his pre-injury average overtime hours. The Senior Arbitrator noted Mr Hee’s claim that he had not done any overtime since he returned to work in late May 2014 was inconsistent with his earnings records. The Senior Arbitrator also concluded that there was no medical evidence to support the contention that Mr Hee was unable to perform overtime. Applying ss 35(1) and 37(2) of Div 2 of Pt 3 of the 1987 Act, the Senior Arbitrator concluded that, given his actual earnings, Mr Hee had no entitlement to weekly compensation during the period claimed.
The Senior Arbitrator concluded:
“Therefore, having regard to the above calculations, it is not surprising that the applicant has not made a claim for weekly compensation pursuant to s 37 as he has no entitlement.”[8]
[8] Reasons, at [181].
The Senior Arbitrator then turned to the construction arguments concerning that application of s 38A, in the absence of any demonstrated loss as calculated after applying ss 35(1) and 37(2).
The Senior Arbitrator stated the relevant principles of statutory construction. He concluded:
“Therefore, one needs to look at the legal and historical context, the text and structure of the legislation and the object of the provisions in order to come to a reasonable conclusion as to its meaning and application.”[9]
[9] Reasons, at [184].
The Senior Arbitrator noted Mr McManamey’s submission that, s 38A of the 1987 Act applies to workers with highest needs. Workers who qualify as workers with highest needs are entitled to a minimum weekly payment of compensation of not less than $788.32 per week regardless of the actual loss suffered. The Senior Arbitrator rejected Mr McManamey’s submission that the second reading speech could not be of any assistance in determining the meaning of s 38A.
The Senior Arbitrator noted that the Minister’s second reading speech, introducing the Workers Compensation Amendment Bill 2015 (the Bill) into the Lower House Parliament on 5 August 2015, explained the context and reasoning behind the proposed amendments to the 1987 Act.[10] Relevantly, the Senior Arbitrator extracted the following from the Minister’s statement in Hansard:
“Schedule 2 to the bill introduces a minimum safety net weekly payment for the most seriously injured workers. The bill will ensure the workers with the highest needs will receive a minimum amount of $788 each week, which will comprise the benefit paid for by their insurer and any post-injury earnings of the worker. This will assist those workers with over 30 per cent permanent impairment who were on very low pre-injury average weekly earnings and who may receive weekly payments for many years.”[11]
[10] Reasons, at [187].
[11] Reasons, at [118].
The Senior Arbitrator relied on the explanatory note to the Bill, which relevantly provides:
“The minimum amount of weekly compensation that an injured worker with more than 30% permanent impairment will be eligible to receive will be the amount of $788.32 (being a combined total of compensation and earnings), to be indexed twice a year.”[12]
[12] Reasons, at [190].
The Senior Arbitrator further relied on the current version of the Workers Compensation Benefits Guide October 2017 (the Benefits Guide) issued by the State Insurance Regulatory Authority (at pages 13-20).[13] He extracted the following:
“Weekly payments
Workers with high needs (more than 20 per cent permanent impairment) who have been assessed by an insurer as having current work capacity, will no longer be required to work at least 15 hours per week to receive weekly payments after the end of the second entitlement period (130 weeks or 2.5 years).
Workers with more than 30 per cent permanent impairment now have access to a minimum weekly amount of $788.32 per week. If the worker’s income (made up of weekly payments and any earnings) falls below $788.32, the insurer will increase the weekly payments to this amount. The change applies to all weekly payments on or after 17 September 2012. This amount will be indexed in April and October each year. The first indexed adjustment review date is 1 April 2016 …”
And:
“Special provision for workers with highest needs
Workers with highest needs (more than 30 per cent permanent impairment) have access to a minimum weekly payment of compensation of $788.32 per week. If the worker’s determined weekly payment of compensation that the worker is entitled to receive is below $788.32, the insurer will increase the weekly payments to this amount. This amount will be indexed in April and October each year. The first indexed adjustment review date is 1 April 2016.”
[13] Reasons, at [193].
Section 38A of the 1987 Act refers to the determination of the amount of weekly compensation under the sub-division. That is, the determination is made in accordance with Subdiv 2 of Div 2 of the 1987 Act. This includes ss 33-42 of the 1987 Act. The Senior Arbitrator rejected Mr McManamey’s submission that it should not be inferred that incapacity is a necessary element in establishing an entitlement under s 38. The Senior Arbitrator found that the submission was not consistent with the manner in which compensation is calculated in accordance with ss 35-38 of the 1987 Act for workers who have either “no current work capacity” or “current work capacity.”
The Senior Arbitrator held:
“The separate right that s 38A of the 1987 Act creates is a minimum payment of $788.32 per week as adjusted for a worker with highest needs. This figure represents 80 per cent of the transitional rate of $985.40. It is not a maximum figure. A worker can be compensated for an amount in excess of $788.32 per week as adjusted, based on the formulae set out in ss 35 to 38 of the 1987 Act.”[14]
[14] Reasons, at [196].
The Senior Arbitrator concluded:
“However, it is apparent from the Explanatory Note, the Second Reading Speeches, the Benefits Guide and the legislation that a worker who has no entitlement to weekly compensation in accordance with the formulae in ss 34 to 38 of the Act will not be entitled to receive a further amount of $788.32 per week as adjusted. This would amount to an overpayment and not proper compensation for lost wages under the 1987 Act.”[15]
[15] Reasons, at [197].
Further, the Senior Arbitrator concluded that the legislation is expressed in simple terms.[16] He held that the clear and unambiguous intention of s 38A of the 1987 Act is to set a minimum amount of compensation that is payable to a worker who has the highest needs. That would involve a calculation based on a combination of the worker’s actual earnings and an assessment of the worker’s capacity. Whether a worker is entitled to receive the greater amount of compensation in the case of “no current work capacity” or “current work capacity” depends on calculations undertaken in accordance with the formula set out in ss 34-38 of the 1987 Act.
[16] Reasons, at [198].
The Senior Arbitrator concluded that in the circumstances Mr Hee had no entitlement to weekly payments of compensation pursuant to s 38A of the 1987 Act.
As to the timing of the payment of any entitlement to weekly compensation, the Senior Arbitrator concluded, if contrary to his finding, Mr Hee was entitled to compensation pursuant to s 38A of the 1987 Act, his jurisdiction to order such payment did not extend beyond the first 130 weeks. The quantification of any entitlement must conform to the formulas in ss 36 and 37 of the 1987 Act, subject to the minimum rate described in s 38A of the 1987 Act for a worker with highest needs. He observed that the decisions in Lee v Bunnings Group Ltd[17] and Rawson v Coastal Management Group Pty Ltd[18] make it clear that the insurer is obliged to assess a worker in respect of any entitlement after the second entitlement period.[19]
[17] [2013] NSWWCCPD 54.
[18] [2015] NSWWCCPD 3.
[19] Reasons, at [200].
Although it was unnecessary for the Senior Arbitrator to determine the commencement date of any payment pursuant to s 38A, he concluded, consistent with the reasoning of Senior Arbitrator McDonald in O’Donnell v Abroandco Pty Ltd,[20] that the entitling factor to a payment under s 32A of the 1987 Act is the assessment of a permanent impairment in excess of 30% in accordance with s 32A of the 1987 Act.[21] Therefore, any payment pursuant to s 38A would commence from the date of the assessment rather than the date of injury.
[20] [2016] NSWWCC 129.
[21] Reasons, at [203].

GROUNDS OF APPEAL

The grounds of appeal are whether the Senior Arbitrator erred when he:
(a) failed to determine that Mr Hee had a partial incapacity within the meaning of s 33;
(b) interpreted s 38A by only considering the explanatory note, the second reading speech and the Benefit Guide, rather than the clear and unambiguous grammatical meaning of the words of the section;
(c) concluded that a worker who has no entitlement to a weekly payment (pursuant to ss 34-38) is not entitled to a payment pursuant to s 38A;
(d) concluded that the clear and unambiguous meaning of s 38A is that a worker with highest needs is to receive a minimum amount of $788.32 per week made up of compensation and actual earnings and then did not apply that meaning;
(e) found that the clear and unambiguous meaning of s 38A is to set a minimum amount of compensation to be paid to a worker with highest needs and then did not apply that interpretation, and
(f) concluded that a worker was not entitled to a payment pursuant to s 38A unless he was entitled to a payment pursuant to ss 34-38.
The respondent’s Notice of Opposition raises a contention that the Senior Arbitrator’s finding with respect to the validity of the work capacity decision issued by the insurer was incorrect. The respondent asserts that a valid work capacity decision was issued which deprived the Commission of jurisdiction to determine the dispute, pursuant to s 43(3) of the 1987 Act.

LEGISLATION

Section 32A of the 1987 Act provides:

“32A Definitions

In this Division and in Schedule 3:

…

current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

….

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.

…
pre-injury average weekly earnings—see section 44C.

...

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:

(a) having regard to:

(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and

(b) regardless of:

(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.

work capacity assessment means a work capacity assessment under section 44A.

work capacity decision—see section 43.

…

worker with highest needs means a worker whose injury has resulted in permanent impairment and:

(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note. Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”

Section 33 of the 1987 Act provides:
“33 Weekly compensation during total or partial incapacity for work
(cf former s 9 (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity …”
Section 37 of the 1987 Act provides:
“37 Weekly payments in second entitlement period (weeks 14-130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:
(a)(AWE × 80%) − D, or
(b)MAX − D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:
(a)(AWE × 95%) − (E + D), or
(b)MAX − (E + D),
whichever is the lesser.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(a)(AWE × 80%) − (E + D), or
(b)MAX − (E + D),
whichever is the lesser.”

Section 38A of the 1987 Act provides:
“38A Special provision for workers with highest needs
(1) If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.
(2) If the amount specified in subsection (1) is varied by operation of Division 6A, a weekly payment of compensation payable to a worker with highest needs before the date on which the variation takes effect is, for any period of incapacity occurring on and after that date, to be determined by reference to that amount as so varied.”

WORK CAPACITY DECISION

In its Notice of Opposition, the respondent raises a “notice of contention” seeking to argue that the insurer issued a valid work capacity decision which by reason of s 43(3) deprived the Commission of jurisdiction to determine the dispute. Such an error would usually be raised by an Application – Appeal Against Decision of Arbitrator (Form 9). However, it is not surprising that the respondent did not file an appeal as the Senior Arbitrator made orders in its favour.
In its reply to the Notice of Opposition, the appellant responds to the “notice of contention.” It does not object to the “notice of contention” being dealt with on appeal.
Whilst there is no provision for a “notice of contention” in the Commission’s rules, proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.[22] In addition, the Commission has a statutory obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.[23]
[22] The 1998 Act, s 354(1).
[23] The 1998 Act, s 354(3).
The appellant has had reasonable notice of the contention (in the Notice of Opposition) and has had an opportunity to respond, and did so in its reply. In addition, the issue raised on appeal was raised (in identical terms) before the Senior Arbitrator. For these reasons, I see no impediment to the respondent’s contention being considered in the context of this appeal. In these circumstances, consistent with the Commission’s approach, it is appropriate that I deal with this issue on appeal even though the respondent has not lodged an appeal.[24]
[24] Navitas English Pty Ltd v Trinh [2017] NSWWCCPD 52; BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69; Rail Corporation of New South Wales v B [2009] NSWWCCPD 81.
The respondent has an exercisable right to argue in favour of a finding that the Commission lacks jurisdiction to deal with the dispute on the basis of s 43(3) of the 1987 Act. However, as this is an appeal under s 352, in dealing with any notice of contention, the Commission’s powers under s 352 are limited to the identification and correction of legal, factual or discretionary error.
This matter proceeded before the Senior Arbitrator on the basis of the parties’ written submissions. The matter was listed on two occasions for a conciliation/arbitration hearing. However, contrary to the usual practice in the Commission, no oral submissions were made before the Senior Arbitrator and the matter proceeded by way of written submissions. The submissions made by the respondent in its notice of contention repeat, word for word, the submissions that were put before the Senior Arbitrator on the issue of the work capacity decision in the respondent’s written submissions dated 14 September 2017.
Prior to the enactment of the Workers Compensation Amendment Act 2010 (2010 amending Act), appeals under s 352 required a Presidential member to conduct a review on the merits. However, following the amendments introduced by the 2010 amending Act, appeals under s 352 are restricted to the identification and correction of legal, factual or discretionary error.
Had the issue of the Senior Arbitrator’s findings concerning the validity of the work capacity decision been the subject of appeal, rather than being raised by way of contention, the respondent would have been required to comply with Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator (Practice Direction No 6). In accordance with Practice Direction No 6, among other things, the respondent would be required to identify the grounds of appeal and file submissions supporting each ground of appeal, citing references to the transcript and evidence. In my view, by raising a contention alleging the Senior Arbitrator’s findings regarding the alleged work capacity decision were erroneous, the respondent was under the same constraints in terms of demonstrating error as it would have been had the issue been the subject of appeal.
No attempt has been made to identify error. No grounds of error have been identified and certainly no submissions in support of any alleged error have been lodged. As I have said, the respondent merely re-stated its submissions before the Senior Arbitrator (verbatim). Those submissions were considered and rejected by the Senior Arbitrator.
For these reasons, there is nothing before me to determine on appeal concerning the Senior Arbitrator’s findings with respect to the work capacity decision.

GROUND ONE

The appellant’s submissions

An entitlement to compensation pursuant to s 38A is dependent upon the requirements of s 33 being satisfied. The reference to incapacity in s 33 is a reference to economic incapacity. “Incapacity” is not limited to a worker’s incapacity for pre-injury employment but refers to incapacity for work on the open labour market reasonably accessible to a worker prior to the injury.[25]
[25] Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 6 DDCR 339; Bruce v Grocon Ltd (1995) 11 NSWCCR 247.
Mr Hee has an incapacity within the meaning of s 33 regardless of whether he is in fact losing money compared to his pre-injury earnings if it can be shown that he has a restriction in his earning capacity on the open labour market.
The evidence before the Senior Arbitrator established that Mr Hee had a partial incapacity and was losing money compared to his probable earnings.
As the Senior Arbitrator accepted, “current work capacity” and “no current work capacity” are defined terms (s 32A) whereas “total incapacity” and “partial incapacity” are not. Both total incapacity and partial incapacity have been the subject of extensive judicial consideration. The fact that s 33 was not amended by the 2012 amending Act indicates that the section was to retain its original settled meaning.
Mr McManamey submits that, the legislature’s decision to retain the terms total and partial incapacity (in the post 2012 legislation) is because those terms have the same meaning they have always had and because the terms do not mean the same thing as “no current work capacity” or “current work capacity”. He submitted that the choice of terms is deliberate. The object of s 33 is to provide that there shall be a weekly payment where there is incapacity as that term has been understood and interpreted by the courts. The terms are not restricted in a way that “current work capacity” and “no current work capacity” are restricted. If s 33 is satisfied then the following sections, including s 38A, apply to determine the amount of the payment. This is because ss 36, 37 and 38 calculate a weekly payment by reference to a figure that is less than probable earnings. There are many cases where a worker can have a partial incapacity but the payment will be nil.
Mr McManamey submits that the calculation of the payment of nil must be reconciled with the direction in s 33, that compensation will include a payment. The way in which that is reconciled is by understanding that a payment of nil, applying ss 36, 37 and 38 is still a payment. It is just that the amount is nil. It is not correct to say, so it is submitted, that there is no entitlement, it is just the entitlement is nil.
Section 38A is a separate provision that modifies the calculation of weekly payments in accordance with the other sections. The terms of s 38A are clear and simple when the ordinary grammatical meaning of the words in the provision are used. If the calculation of a weekly payment produces an amount that is less than $788.32 then the payment will be $788.32. In simple terms, so it is submitted, a worker with highest needs will receive a payment of at least $788.32 regardless of what the actual loss is.
The section will often operate to put a worker with highest needs in a better position than he or she was prior to the injury. That is so, even if the interpretation given in the second reading speech applied.
The principles of overcompensation do not apply to s 38A. Once a worker with highest needs has a partial incapacity, he or she will be entitled to a weekly payment of no less than $788.32 per week as adjusted.
Mr Hee has a partial incapacity and also has a current loss which is set out in his supplementary submissions.
The Senior Arbitrator should have found that there was, and is, partial incapacity so that the terms of s 33 are satisfied.
In any event, the Senior Arbitrator should have found that it was not necessary to satisfy s 33 to receive a payment calculated in accordance with s 38A. Mr McManamey refers to the written submissions before the Senior Arbitrator but did not elaborate on them.

The respondent’s submissions

The respondent submits that the Senior Arbitrator correctly found that Mr Hee had no incapacity within the meaning of s 33 of the 1987 Act.
In order for s 38A to apply, there must be a determination of the amount of weekly payments of compensation payable to a worker with highest needs “in accordance with this subdivision.”
The subdivision contains s 33 which provides that an employer is liable to pay compensation “if total or partial incapacity for work results from an injury.” The respondent submits that this means an incapacity in the relevant sense of an injury sounding in economic terms. It follows that there is no incapacity in the relevant sense in this matter, and, therefore, there cannot be a determination of the amount of weekly compensation payable.
Contrary to Mr McManamey’s submissions, the evidence did not establish that Mr Hee was “losing money when compared to his probable earnings.” Indeed, the Senior Arbitrator found that Mr Hee “suffers no wage loss.”[26]

GROUNDS TWO, THREE AND FOUR

[26] Reasons, at [184].

The appellant’s submissions

The principles of statutory construction are well known. The Senior Arbitrator referred to the principles set out by Deputy President Roche in Hesami v Hong Australia Corporation Pty Ltd,[27] summarising the principles in Wilson v State Rail Authority of NSW.[28]
[27] [2011] NSWWCCPD 14 (Hesami).
[28] [2010] NSWCA 198.
Mr McManamey submits that it is instructive to note that the principles set out by the Deputy President and the Court of Appeal makes no reference to the second reading speeches or explanatory notes.
The intention of Parliament is primarily determined by applying the ordinary grammatical meaning of the words used, reading the statute as a whole. The second reading speech and explanatory note can be taken as some guidance where there is ambiguity in the meaning of the words but care must be taken.
It is submitted that the terms of s 38A are simple, clear and unambiguous. If a calculation of a weekly entitlement of a worker with highest needs produces an amount less than $788.32 per week, the amount of weekly payment will be $788.32.
Mr McManamey submits that “[t]here is to [sic, no] need to refer to other material to clarify a matter that is already clear.”
Read in context with the statute, s 38A is one of the sections that determines the amount of weekly payments payable to a worker along with ss 34 to 39. When read with s 33, an interpretation that means that any worker with highest needs who is paid a partial incapacity is entitled to no less than $788.32 per week is the interpretation that produces a harmonious result. The alternative interpretation gives s 33 no meaning. When interpreting a statute, all sections should have some work to do.
Mr McManamey submits that it would often be the case given the nature of the impairment required to satisfy the definition of worker with highest needs, that there will be at least a partial incapacity.
Mr McManamey also submits that the Senior Arbitrator approached the matter only by considering the explanatory note, the second reading speech and the Benefits Guide. The Benefits Guide is not a proper reference for interpreting the section.
The reference to the second reading speech and the explanatory note give meaning that cannot be reconciled with the words of the section. The second reading speech and the explanatory note both claim that the section provides an amount of compensation that is to be $788.32 made up of a combination of compensation and actual earnings. The problem with this interpretation, so it is submitted, is that the section makes no reference to actual earnings, either expressly or by inference. The section is solely directed to the amount of weekly compensation and provides that the amount of that compensation shall be no less than $788.32.
The second reading speech and the explanatory note both propose an interpretation that is not available applying the words of the section and the words cannot be twisted to give it that meaning.
Mr McManamey submits that perhaps the only thing that can be taken from the second reading speech and the explanatory note is the intention that workers with highest needs are to be specially compensated. He gave the example of a worker whose pre-injury average weekly earnings were only $200 per week with an ability to earn $160 a week who would have no entitlement under s 37 but would still be entitled, so it is submitted, to $788.32 per week, applying the interpretation in the second reading speech. Alternatively, a worker with low pre-injury earnings will receive compensation as if they were earning $788.32 per week.
On either interpretation, there can be a payment under s 38A, even if there is no amount payable applying the terms of s 37. The entitlement to a payment calculated pursuant to s 38 cannot depend on an amount being payable applying ss 36, 37 and 38.

Respondent’s submissions

The respondent’s submissions are sufficiently scant for them to be reproduced in full:
“The Arbitrator’s reasons for judgement appropriately set out the principles of statutory interpretation.
The respondent submits that the Senior Arbitrator has undertaken an appropriate exercise of statutory construction in relation to s 38A in accordance with those principles.
In particular, it was permissible for the arbitrator to have regard to the words used by the Parliament in their legal and historical context. Further, context is to be considered in the first instance and not merely when some ambiguity is discerned.”

GROUND FIVE

Appellant’s submissions

The Senior Arbitrator found that s 38A sets a minimum amount of compensation payable to a worker with highest needs yet that conclusion is inconsistent with the Senior Arbitrator’s finding that Mr Hee is not entitled to any payment at all.[29]
[29] Citing Reasons, at [198].
Mr McManamey submits:
“There is nothing in the statement about the meaning of the section that allows for a conclusion that there is no entitlement unless there is an amount payable pursuant to sections 36, 37 or 38. There will be many instances where because a worker is a low earner, he or she will not be entitled to a payment under either of those sections. In those cases there would be no amount payable to worker unless section 38A is applied in a way contended for by the Appellant.”
The Senior Arbitrator approached the matter on the basis that if there was no amount payable under ss 36, 37 or 38 of the 1987 Act, there would be an overpayment and not a proper compensation for lost wages. Mr McManamey contends that s 38A is designed to do exactly that. He submits:
“In all the circumstances where the section applies there will be an increase in the payment to an amount that is greater than the compensation that would otherwise be proper compensation for lost wages. This will always be the case for a worker who was earning less than $788.32 prior to the injury. Given the terms of the section, it is an error to attempt to interpret the section on the basis that an interpretation can lead to what may be viewed as overcompensation. The whole purpose of the section is to make a special provision for workers with highest needs which is to ensure a minimum amount of weekly compensation regardless of the actual loss being suffered.”

Respondent’s submissions

The respondent submits that the Senior Arbitrator’s conclusion that s 38A sets a minimum amount of compensation that is payable to a worker with highest needs is qualified by the provisions of ss 33 to 38 of the 1987 Act.
It submits that if an application of s 37 results in a finding that there is a “nil” entitlement to weekly compensation, s 38A has no operation. The submission was not further developed.

GROUND 6

Appellant’s submissions

In addition to the submission already made, the appellant submits that the Senior Arbitrator did not give any explanation as to why his interpretation was to be preferred. It is submitted that the only reason given is that it was apparent from the second reading speech and explanatory note. It is submitted that was an error.
The interpretation favoured by the Senior Arbitrator is inconsistent with the words of the section. The interpretation contained in the second reading speech is simply not a meaning that can be given to the words of the section.
Once it is appreciated that the section is not talking about a combination of compensation and earnings, there is no justification for limiting the words of s 38A in the manner that was done by the Senior Arbitrator. Section 38A does not depend on the provisions of ss 34 to 38, it is a standalone provision. As discussed above, the concepts of overcompensation have no application.

Respondent’s submissions

The respondent merely submits that “[t]his ground is no different than set out in Ground 3. The Respondent repeats its earlier submissions.”

DISCUSSION AND FINDINGS

The issues raised on appeal turn in part on a question of statutory construction. The principles of statutory construction are well established. In Project Blue Sky v Australian Broadcasting Authority[30] the plurality, set out the following principles:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

... Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.”[31] (citations omitted)
[30] [1998] HCA 28; 194 CLR 355 (Project Blue Sky).
[31] Project Blue Sky, at [69]-[70] (per McHugh, Gummow, Kirby and Hayne JJ).

The significance of context was further emphasised by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[32] where the plurality explained, that:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[33]
[32] [2009] HCA 41; 239 CLR 27 (Alcan).
[33] Alcan, at [47].

This approach to statutory construction was confirmed in Certain Lloyd’s Underwriters v Cross[34] and most recently in SZTAL v Minister for Immigration and Border Protection.[35]
[34] [2012] HCA 56; 248 CLR 378.
[35] [2017] HCA 34, at [14] and [36]-[38].
As these authorities make clear, the relevant provision must be construed so that it is consistent with the language and purpose of the statute. The starting point in statutory construction is a consideration of the ordinary and grammatical meaning of the provision having regard to the legislative purpose.
The scheme of the 1987 Act is to provide compensation to workers who have sustained an injury within the meaning of that term in s 4 of the 1987 Act. Relevantly s 9 of the 1987 Act provides that workers who have received an injury shall receive compensation from the worker’s employer in accordance with the 1987 Act. Part 3 of the Act deals with compensation benefits and is divided into various divisions which deal with various entitlements including, compensation payable upon the death of a worker (Div 1), compensation for medical expenses (Div 3), compensation for non-economic loss (Div 4) and so on. Division 2 of Pt 3 of the 1987 Act, which includes ss 32A-42, deals with weekly compensation by way of income support.
Section 32A provides the definition of terms, such as “current work capacity”, “no current work capacity”, “suitable employment” and a “worker with highest needs”, under Div 2 and Sch 3 to the 1987 Act. These definitions are reproduced at [77] above.
Section 33 provides for weekly compensation during total or partial incapacity for work.
Section 34 provides the maximum weekly compensation amount.
Section 35 sets out the factors used to determine the rate of weekly payments payable to an injured worker.
Sections 36-38 provide for the formulas to be applied to determine the weekly compensation payable during the first, second and subsequent periods. Sections 39-42 are not relevant to present proceedings.
Section 38A is a special provision which provides additional weekly compensation, in certain circumstances, to workers of highest needs. Namely, those workers who have an assessed whole person impairment of more than 30% or an Approved Medical Specialist has declined to make an assessment on the basis that the degree of permanent impairment is not fully ascertainable.[36]
[36] The 1987 Act, s 32A.

The text of s 38A makes it clear that the additional special benefits are only payable if certain conditions are satisfied. Those conditions are as follows.
First, there must be a “determination” made of the amount of weekly payments of compensation payable in accordance with the subdivision (Subdiv 2). In the circumstances of this case and for the reasons discussed below, as Mr Hee is still within the second entitlement period that must mean a determination made in accordance with s 37 of the 1987 Act.
Second, s 38A provides that there must be an “amount of weekly payments of compensation payable” (emphasis added) following such a determination.
Third, the amount of compensation must be an amount that is less than $788.32.
It seems plain that the general purpose of inserting s 38A into the legislation is to ensure that workers with highest needs receive additional weekly compensation payments compared to those workers with an impairment of 30% or less. That is not to say that all workers with highest needs receive the additional compensation. Such compensation is only available to those workers who meet the conditions set out above.
I do not accept Mr McManamey’s submission that the benefits available under s 38A are payable merely by satisfaction of the definition of worker with highest needs coupled with a finding of “incapacity” under s 33, as that term was understood prior to the 2012 amending Act. That is because, as the Arbitrator found, s 33 merely confirms that an employer is liable to pay weekly compensation to an injured worker during a period of incapacity, whether it be total or partial.[37] However, the manner of calculating the quantum of entitlements is based on the clear and unambiguous terms of ss 34 to 38 of the 1987 Act.
[37] Reasons, at [162].

146.It is not in dispute that any entitlement to weekly compensation Mr Hee may have falls for determination under s 37, as he is still within the second entitlement period. The formulas provided for in s 37 depend upon whether the worker “has current work capacity” or “no current work capacity” as those terms are defined in s 32A. It has not been argued, nor could it have been argued, that Mr Hee was a worker with “no current work capacity”. Obviously, he had returned to work and continued working full-time duties following the accepted injury.
147.A worker with “current work capacity” is defined as a worker who “is not able to return to his or her per-injury employment…”[38] Subject to the Senior Arbitrator’s factual findings on capacity being correct, Mr Hee cannot meet the statutory description of a worker with “current work capacity” or “no current work capacity”. That is because the effect of the Senior Arbitrator’s factual findings confirm that Mr Hee is able to return to his pre-injury employment. The application for weekly compensation should have failed once those findings were made.
[38] The 1987 Act, s 32A.
148.This is consistent with the findings of the New South Wales Court of Appeal in Sabanayagam v St George Bank Ltd,[39] where the Basten JA stated:
“Aside from all those matters, the factor which concludes the issue against there having been a work capacity decision on 20 March 2015 is the failure of the insurer to consider the appellant’s ability to return to work in suitable employment. The definitions of both ‘current work capacity’ and ‘no current work capacity’ assume that the worker is not able to return to his or her pre-injury employment, the distinction between the two concepts turning upon the ability to return to work in suitable employment. Where that ability exists, there is ‘current work capacity’; where it does not exist, there is ‘no current work capacity’. As noted above, the appellant could only satisfy s 38 if she was a person with ‘no current work capacity’, being unable to return to work either in her pre-injury employment or in suitable employment.”[40]

149.However, for reasons that are not readily apparent, the Senior Arbitrator undertook the exercise of a calculation of Mr Hee’s entitlements as if he was a worker with “current work capacity.”
150.It is not in dispute that the calculation of Mr Hee’s entitlements to weekly compensation made by the Senior Arbitrator, pursuant to s 37, produced a nil result.

[39] [2016] NSWCA 145 (Sabanayagam).

[40] Sabanayagam, at [22].

I do not accept Mr McManamey’s submission that, applying the formula in s 37, an assessment of nil does not equate to a finding of no entitlement to benefits. The plain words of s 38A suggest the opposite is the case. Unless the calculation of any entitlement under Div 2 results in an amount “of compensation payable” to the worker s 38A does not apply. This ensures that only those workers who have a demonstrated entitlement to weekly compensation are able to access the additional benefits available under s 38A. An assessment of nil under s 37 cannot result in “compensation payable” to the worker.
This construction produces the most harmonious result. That is because it must be understood, as I have said, that the purpose of s 38A is to provide workers with highest needs who, without the benefits of that provision, would receive more modest weekly compensation payments. It would be an absurd outcome if the additional benefits under s 38A were available to workers such as Mr Hee who, notwithstanding his considerable impairment, is unable to demonstrate that he is suffering any loss of earnings as a consequence of his injury. That is not to say that Mr Hee would be permanently precluded from recovering s 38A benefits. He is eligible to renew his application for such benefits should his circumstances warrant it.
I have not been directed to any authority or reasoned argument to support the submission that a calculation of nil entitlement applying the formula in s 37 can in some way be treated as an amount payable to the worker. Although not directly on point, the only authority dealing with similar issues, I have discovered is contrary to the proposition advanced by Mr McManamey.
The decision of the Court of Appeal in Kesen v Luke Singer Pty Ltd[41] was a case involving the application of s 11(1) of the Workers Compensation Act 1926 (the 1926 Act), which concerned the assessment of compensation for partial incapacity. It was a predecessor to the current provisions of Div 2 of Pt 3 of the 1987 Act. In the Compensation Court of New South Wales O’Meally J refused a worker compensation for a period of time when he was voluntarily absent from the jurisdiction. Judge O’Meally, applying the discretion in s 11(1), fixed the amount of compensation “as nothing” for the period the worker was absent from the jurisdiction.
[41] (1989) 18 NSWLR 566 (Kesen).
The NSW Court of Appeal, upholding an appeal from Judge O’Meally’s decision, held:
“What seems to us to be the clearest error of law appearing in the passage from his reasons set out above is his assumption that a weekly payment of nothing is a weekly payment. The subsection requires that if partial incapacity is found a weekly payment is to be made. It must not exceed the figure found by step (3) and it may be reduced below that figure to a figure which bears a proper relation to the step (3) figure. Zero bears no relation to the step (3) figure, or any real number.”[42]
[42] Kesen, at 568.

Acknowledging that Kesen is a case dealing with the 1926 Act and a different statutory regime, it does, however, tend to provide support for concluding that a calculation under s 37 of the 1987 Act resulting in nil is not any “real number” or any actual amount that could result in compensation payable, as required by s 38A before the additional special benefits are payable.
Whilst not determinative, this approach is also consistent with the findings of Roche DP in Flying Solo Properties Pty Ltd t/as Artee Signs v Collet[43] which was concerned with the meaning of when weekly compensation payments become “payable” pursuant to s 59A. The Deputy President held:
“(a) for the purposes of s 59A, weekly compensation is not ‘payable’ merely because a worker may have a future right to such compensation or merely because the ‘entitlement periods’, as defined in s 32A, have not expired;

(b) weekly compensation is ‘payable’ when a worker has an entitlement to receive actual weekly compensation by reason of a compensable work injury. That can occur without a formal determination that it is payable …”[44]
[43] [2015] NSWWCCPD 14 (Collet).
[44] Collet, at [76].

Although I accept that these observations are in the context of a different provision within the same statute, where a word is used consistently in legislation it should be given the same meaning consistently. In Craig Williamson Pty Ltd V Barrocliff[45] Hodges J held:
“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”[46]
[45] [1915] VLR 450 (Barrocliff).
[46] DC Pearce and RS Geddes, Statutory Interpretation in Australia (Butterworths, 8th ed, 2014), at 4.6 citing Barrocliff at 452.
Whilst there may be merit in the submission that the principles of over compensation do not apply in cases where a worker is entitled to a s 38A benefit, that does not mean that s 38A is satisfied by a worker of highest needs merely establishing that he or she suffers a partial incapacity within the meaning of s 33 of the 1987 Act.
The NSW Court of Appeal considered the current operation of s 33 of the 1987 Act in Sabanayagam, where Sackville AJA (Beazley P agreeing) said:
“Section 33, which has antecedents in New South Wales going back to at least 1910, provides that if ‘total or partial incapacity results from an injury’, the compensation payable to the injured worker includes a weekly payment during the period of incapacity. Section 33 assumes that a worker has received an injury and therefore satisfies s 9(1) of the [1987 Act]. However, it imposes additional conditions that must be satisfied before the worker becomes entitled to weekly compensation payments.”[47] (emphasis added)
[47] Sabanayagam, at [126].
If Mr McManamey’s argument is to be accepted, once a worker has established incapacity, and has satisfied the definition of a worker with highest needs, the worker is entitled to enjoy the benefits available under s 38A irrespective of whether any entitlement to weekly compensation under ss 34-38 has been established. Applying the settled principles of statutory construction, discussed above, that argument cannot be accepted. That is because it is directly contrary to the text and context of s 38A.
This is consistent with High Court authority. In Project Blue Sky, the majority said:
“A court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume [(1905) 2 CLR 405] Griffith CJ cited R v Berchet [(1688) 1 Show KB 106] to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”[48] (omitting footnotes)
[48] Project Blue Sky, at [71] (per HcHugh Gummow, Kirby and Hayne JJ).
It follows that if Mr McManamey’s submissions are to be accepted the word “determination” in s 38A would be regarded as superfluous. That word would become irrelevant because, on Mr McManamey’s submission, the s 38A benefit would become payable in all circumstances where a worker with highest needs is suffering an incapacity regardless of any determination of the compensation payable. The words “amount” and “payable” would also be superfluous because, based on Mr McManamey’s submission, the s 38A benefit is available where there is no amount of weekly payments of compensation payable.
I do not accept the submission that this construction would leave s 33 with no work to do. That is because s 33 operates as a vesting section. It vests a right to compensation where a worker suffers incapacity as a result of an injury. In Watts Peterson Automotive Pty Ltd v Peterson[49] Burke J held that:

“Section 33 vests a right to compensation where a worker suffers incapacity as a result of injury. Section 4 defines the various categories of injury which might relevantly afflict a worker. Depending on which category of injury in section 4(b) is involved, sections 15 and 16 prescribe some of the formalities relevant to the liability arising under section 33. The latter sections do not provide the worker with a right to compensation but facilitate the implementation of the right arising from section 33.”[50]
[49] [1994] NSWCC 30; 10 NSWCCR 653 (Peterson).
[50] Peterson, at 661.

Although Burke J’s remarks were made in reference to the 1926 Act, they remain valid in the context of the current legislation. Once an entitlement to weekly compensation is established, including satisfaction of s 33, the remaining provisions in Div 2 of Pt 3 of the 1987 Act, facilitate the implementation of the right arising from s 33 and provide for the quantification of the entitlement, if any, including any entitlement to s 38A benefits.
Further, I do not accept the submission that the Senior Arbitrator approached the matter only by considering the explanatory note, the second reading speech and the Benefits Guide, although they certainly informed his consideration on the construction issue. The Senior Arbitrator, having considered the principles of statutory construction as set out in Hesami, said:
“Therefore, one needs to look at the legal and historical context, the text and structure of the legislation and the object of the provisions in order to come to a reasonable conclusion as to its meaning and application.”[51]
[51] Reasons, at [184].
The Senior Arbitrator’s consideration of the Minister’s second reading speech, and the explanatory note was appropriate, as the Senior Arbitrator said, “to give insight as to the intentions of the legislators….”[52] As a matter of construction, recourse to such extrinsic material is permissible to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision or to determine the meaning of the provision if the provision is ambiguous or obscure or if the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or unreasonable.[53]
[52] Reasons, at [186].
[53] Interpretation Act 1987, s 34.
As the Senior Arbitrator noted, the Minister introducing the Workers Compensation Amendment Bill 2015 (the Bill) for a second time stated that, the bill was to ensure that workers with highest needs will receive a minimum amount of $788.32 each week, comprised of the benefit paid for by their insurer and any post-injury earnings of the worker. It was intended that this was to assist those workers with over 30 per cent permanent impairment who were on very low pre-injury average weekly earnings and who may receive weekly payments for many years. The full extract of the Minister’s comments is extracted in the Senior Arbitrator’s reasons.[54]
[54] Reasons, at [188].
The explanatory note to the Bill was consistent with the Minister’s explanation of the operation of how s 38A was intended to operate. Clause b(iii) to the Bill provided:

“The minimum amount of weekly compensation that an injured worker with more than 30% permanent impairment will be eligible to receive will be the amount of $788.32 (being a combined total of compensation and earnings), to be indexed twice a year.”

As the Senior Arbitrator observed the Benefits Guide expressed the intended operation of s 38A in similar terms to the second reading speech and explanatory note.
It was therefore open to the Senior Arbitrator to conclude that the legislative intention arising from an examination of the extrinsic material demonstrated that it was intended that a worker with highest needs would receive $788.32 per week, comprising of the worker’s weekly compensation and actual earnings, if any.

However, I accept Mr McManamey’s submission that the reference to the second reading speech, the explanatory note and Benefits Guide give a meaning that cannot be reconciled with the words of the section. Mr McManamey submitted and I accept that, the second reading speech, the explanatory note and the Benefits Guide all claim that s 38A is intended to provide an amount of compensation of $788.32 which comprises a combination of compensation and actual earnings, however s 38A makes no reference to actual earnings, either expressly or by inference. Applying the accepted principles of statutory construction, the meaning ascertained by reference to the extrinsic material must not displace the clear terms of the legislation.
It follows that the Senior Arbitrator’s reliance on the extrinsic material to ascertain the meaning and operation of the legislation was an error of law. However, nothing turns on the error because, as discussed above, when the legislation is construed applying the ordinary grammatical meaning of the text of s 38A the result is the same. Namely, in the absence of an amount of weekly compensation payable to the worker calculated in accordance with the provisions of ss 34–38 there can be no entitlement to the additional benefits conferred by s 38A of the 1987 Act.

Although it is not determinative of the appeal, because as I have said (at [147]) if the Senior Arbitrator’s factual findings are correct Mr Hee is unable to satisfy either definition of a worker with “current work capacity” or “no current work capacity” and therefore is not entitled to compensation under s 37, I note the following. For the following reasons, the Senior Arbitrator’s factual findings on capacity, are soundly based on the evidence presented and do not involve error.
First, the Senior Arbitrator found that there was no evidence before the Commission that Mr Hee was unfit to perform his usual duties including overtime.[55] The most recent medical evidence tendered in support of Mr Hee’s claim was the report of Dr O’Sullivan dated 12 January 2017. Even after recording Mr Hee’s symptoms, that he has difficulty walking and climbing stairs, and that he had residual impairment of function in both hands, slight incontinence and slight sexual dysfunction; Dr O’Sullivan opined that Mr Hee continued to be fit for full-time work as a bus driver working 9 hour shifts, 6 days a week. In other words, notwithstanding an acceptance of the symptomology Mr Hee complained of, Dr O’Sullivan did not accept that Mr Hee suffered any impairment in his ability to undertake his normal duties, including overtime.
[55] Reasons, at [167].
Further, as the Senior Arbitrator observed, the medical certificates issued by Dr Abeydeera, Dr Narayanan and Dr Ruan do not assist Mr Hee as they do not extend beyond May 2014.
The evidence of Dr Kohan and Dr Mellick offer no assistance as both doctors certified Mr Hee fit for full-time duties.
It follows that, even if it is accepted that Mr Hee is not working overtime hours to the extent that he was pre-injury (which the Senior Arbitrator did not accept) there was no evidence before the Senior Arbitrator to establish that Mr Hee’s decline in overtime was a result of the accepted work injury.
Second, the Senior Arbitrator placed little weight on Mr Hee’s evidence concerning his alleged loss of earnings. As the Senior Arbitrator found, in his first statement Mr Hee said that he returned to work after the accepted injury on a full-time basis including undertaking over time duties. Mr Hee added that his return to work was “without restriction.” However, in his second statement, Mr Hee claimed that since his return to work at the end of May 2014, he could not do any over time. That latter evidence was not accepted. The Senior Arbitrator found that Mr Hee’s pay slips demonstrated that he worked overtime, albeit not excessive overtime, on a regular basis following his return to work.[56]
[56] Reasons, at [166].
Further, the Senior Arbitrator found that the evidence concerning overtime worked before the accepted injury was unreliable. Mr Hee also claimed that prior to the injury he was working overtime after 80% of his shifts. However, Mr Singleton, the staff supervisor, considered that to be an overestimate. Mr Singleton said that prior to Mr Hee’s injury he was probably offered overtime after 50% to 60% of his shifts.
Moreover, Mr Hee’s actual gross earnings post injury do not demonstrate any diminution in his earnings. The evidence reflects an increase in Mr Hee’s post-injury earnings compared to his pre-injury earnings. In the financial year ending 30 June 2013, the last full year before the injury, Mr Hee earned $75,992. Whereas, in the financial year ending 30 June 2015 he earned $82,419. In the financial year ending 30 June 2017, he earned $82,748.
In submissions before the Senior Arbitrator, Mr McManamey claimed that Mr Hee’s inability to undertake overtime was due to his being “tired and stressed” after completing his shifts. That submission is unsupported by the evidence. I note that Mr Hee did not make any direct connection between being “tired and stressed” and the effects of the accepted work injury. Nor are there any reported complaints to any of his treating doctors of feeling tired and stressed by reason of his accepted injury. However, as neither parties made any submissions in relation to this issue on appeal, I make no findings with respect to it.
Further, for the following reasons, I do not accept Mr McManamey’s submission that Mr Hee is entitled to an award of compensation because there was evidence of a partial incapacity compared to Mr Hee’s probable earnings. Whatever Mr Hee’s “probable earnings” may have been is irrelevant. There is no longer any reference in either the 1987 Act or the 1998 Act to the notion of partial incapacity being assessed by reference to probable earnings.
Section 40(2) of the 1987 Act, as it stood prior to the 2012 amending Act, provided for the calculation of the reduction in the worker’s earnings to be made by reference to the amount the worker “would probably have been earning” had the worker continued to be employed in the same or some comparable employment. However, that provision has been repealed, save in respect of police officers, paramedics, firefighters and existing recipients of weekly compensation, in respect of whom those provisions continue to apply.[57] Mr Hee does not fall into those categories of exempt workers.
[57] The 1987 Act, cl 25 of Pt 19H of Sch 6 and cl 6 of Div 2 of Pt 19H of Sch 6.
The Senior Arbitrator’s findings concerning Mr Hee’s ability to return to his pre-injury employment were open and do not disclose error. It follows that Mr Hee’s submission that “the evidence before the Arbitrator established that Mr Hee had a partial incapacity and was losing money compared to his comparable earnings” cannot be accepted.

186.I also reject Mr McManamey’s submission that the Senior Arbitrator erred by finding that the clear and unambiguous meaning of s 38A “is to set a minimum amount of compensation to be paid to a worker with highest needs yet he did not apply that interpretation.”[58] The submission is a misleading interpretation of the Senior Arbitrator’s finding. The Senior Arbitrator said:
[58] Citing Reasons, at [198].
“Parliament’s legislation is expressed in simple terms. In my view, the clear and unambiguous intention of s 38A of the 1987 Act is set a minimum amount of compensation that is payable to a worker with highest needs. This will involve a calculation based on the worker’s actual earnings and an assessment of the worker’s capacity. Whether a worker is entitled to receive a greater amount of compensation in the case of ‘no current work capacity’ or ‘current work capacity’ depends on the calculations undertaken in accordance with the formulae set out in ss 34 to 38 of the 1987 Act.”[59]
[59] Reasons, at [198].

187.For the reasons already discussed, the Senior Arbitrator’s ultimate conclusion is correct.

CONCLUSION

188.A worker with highest needs and an established incapacity is not entitled to the additional benefits payable pursuant to s 38A merely by reason of the satisfaction of those criteria alone. More is required. The benefits provided for in s 38A are only payable where a worker has established that there is an amount of weekly compensation payable applying the provisions of ss 34-38 that is less than $788.32. A worker, such as Mr Hee, who is unable to establish any amount of weekly compensation payable arising from a compensable injury, is not eligible for the additional benefits under s 38A.
189.For these reasons, the appeal fails.

DECISION

190.The Senior Arbitrator’s determination of 27 October 2017 is confirmed.

Judge Keating

President

26 February 2018

Period Earnings	Actual Earnings	Probable
2013	$1,516.63 P.W.	$1,516.63
2014	$1,305.37	$1,565.90
2015	$1,568.92	$1,603.25
2016	$1,584.98	$1,643.43
2017	$1,591.31	$1,673.47